Harvey Weinstein wins minor victory as prosecutors dismiss charge

Harvey Weinstein wins minor victory as one charge in criminal case is dismissed after witness says accuser told her she willingly performed a sex act on mogul at his office

Harvey Weinstein is now facing just five charges in his criminal case

The Manhattan District Attorney agreed to dismiss the charge after new information came to light, but can represent the charge to a grand jury

One of the six charges against him was dismissed on Thursday after a witness revealed that she was told the encounter with Lucia Evans was consensual

Weinstein had been facing up to 25 years in prison for that charge of criminal sex act

That witness also revealed that she and Evans met Weinstein at a bar in 2004 where he offered them money to expose their breasts

There is also an issue regarding Evans’ claim that she had never told her husband about the assault after it was revealed she may have described to him in 2015

The dismissal of Count Six does not affect the remaining counts of the indictment,’ said a spokesperson for the Manhattan DA

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Harvey Weinstein is now facing just five charges in his criminal case after a judge on Thursday agreed to dismiss one count that was related to a 2004 allegation.

This small win came after new evidence came to light about Lucia Evans, who claimed she had been forced to perform oral sex on Weinstein back in 2004 while attending a meeting at his office in New York.

A friend of Evans who was with her night she might Weinstein and spoke with ehr after the alleged incident took place told investigators that her friend had willingly performed a sex act on Weinstein.

Weinstein had been facing up to 25 years in prison for that charge of criminal sex act.

This could have far greater repercussions at trial, as the defense could use the dismissal of this charge to cast doubt on the district attorney’s case.

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Day in court: Harvey Weinstein is now facing just five charges in his criminal case

Conflicting stories: One of the six charges against him was dismissed on Thursday after a witness revealed that she was told the encounter with Lucia Evans was consensual

Last chance Harvey: The Manhattan District Attorney agreed to dismiss the charge after new information came to light, but can represent the charge to a grand jury

No worries: The dismissal of Count Six does not affect the remaining counts of the indictment,’ said a spokesperson for the Manhattan DA

The witness also revealed that on the night she and Evans met Weinstein the mogul offered them money to expose their breasts.

They did not do this at the time, but she said that Evans later told her she exposed her breasts to Weinstein in a hallway.

Evans later disputed this claim.

Weinstein’s attorney moved to have the charge thrown out almost as soon as the judge was seated on Thursday.

Assistant District Attorney Joan Illuzzi told the court that the prosecution would not object to the dismissal, noting that the defendant is still facing five additional charges.

‘Upon defendant’s request, Judge Burke today lifted a protective order which previously covered the attached letter sent from ADA Joan Illuzzi to Benjamin Brafman on September 12, 2018, regarding mandatory disclosures under Criminal Procedure Law 240.20 and Brady v. Maryland,’ as spokesperson for the Manhattan District Attorney said on Thursday.

‘Additionally, in light of the newly-discovered and mandatorily-disclosed information contained within the letter, the Court today – upon defendant’s motion – dismissed Count Six of the indictment, concerning a forcible sexual act against a woman in 2004, while granting leave for the People to re-present Count Six to a Grand Jury.

It was then noted: ‘The dismissal of Count Six does not affect the remaining counts of the indictment.’

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It has been a year since Weinstein was first accused of sexually assaulting and harassing a slew of women in Hollywood.

And just last Friday a new lawsuit was filed against him by Travelers Casualty and Surety Co., which is now the fourth insurance company seeking a ruling that would allow the company to deny any requests to cover Weinstein’s many pending legal battles.

The lawsuit is a bit of a surprise given that Weinstein had coverage from the plaintiff while working at The Walt Disney Company from 1993 to 1998, shortly after the corporate giant acquired his production company Miramax.

An even bigger surprise, which also suggests more paper for Weinstein in the future, is the revelation in the lawsuit that an additional five women have filed pre-claims that could become lawsuits in the near future.

In total, there are 22 lawsuits and claims pending against Weinstein at this time, and a dwindling number of insurers willing to cover legal costs or any settlements in these cases.

Weinstein has ‘vehemently’ denied ever committing any criminal acts.

The first of the pre-claim suits mentioned in the filing from Traveler’s is C.C. v. Harvey Weinstein.

‘On February 21, 2018, C.C. asserted a claim against Weinstein. The claim alleges that C.C. had been subjected to a hostile and sexually abusive workplace during her time as an employee of The Weinstein Company (from June 2012 to July 2017 while performing her duties in London, New York and around the world,’ states the filing.

‘C.C. alleges that she was subjected to regular and pernicious sexualized behavior including penetrative sex and other sexual acts by Weinstein.’

While not identified, the timeline for those allegations do line up with one of the three victims whose alleged assault led to criminal charges for Weinstein.

Next is an alleged victim known only as R.P.

‘On October 14, 2017, R.P. asserted a claim against Weinstein alleging that she was sexually assaulted by Weinstein in or around December, 2006, when they met to discuss business,’ states the complaint from Travelers.

‘R.P. also alleged that Weinstein threatened and touched her in an aggressive manner during a 2014 meeting.’

Next was the pre-claim filed by B.Q. ‘alleging that Weinstein sexually assaulted her at the Montage Hotel on February 28, 2017.’

This is one of the most recent allegations against Weinstein, occurring at a time when he allegedly knew that stories about him were in the works thanks to his lawyer Lisa Bloom.

The fourth claim is one of the older, and more graphic, to have emerged in the court documents.

‘On July 17, 2018, P.R. asserted a claim against Weinstein that she was sexually assaulted and abused by Weinstein in the summer of 1995 in Dublin, Ireland,’ states the filing.

It goes on to provide a number of arguments as to why Travelers has no responsibility to indemnify Weinstein.

Peep show: That witness also revealed that she and Evans met Weinstein at a bar in 2004 where he offered them money to expose their breasts

Version of events: They did not do this at the time, but she said that Evans later told her she exposed her breasts to Weinstein in a hallway.

This only came about after Travelers was contacted by the defendant via his legal counsel.

‘Weinstein, through his attorneys, notified Travelers on various dates of the Underlying Claims and requested that Travelers defend and indemnify Weinstein under, inter alia, the Aetna Policies,’ states the complaint.

Among the reasons for refusing Weinstein’s request in the complaint are:

‘These alleged acts were not performed in the course and scope of Weinstein’s employment or in performance of any of Weinstein’s duties as an employee, officer or director of TWDC.’

HARVEY WEINSTEIN CHARGES

Predatory Sexual Assault (Class A-II Felony) – 10 years to life in prison

A person is guilty of predatory sexual assault when:

1. In the course of the commission of the crime or the immediate flight therefrom, he or she:

(a) Causes serious physical injury to the victim of such crime; or

(b) Uses or threatens the immediate use of a dangerous instrument; or

2. He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, or aggravated sexual abuse in the first degree.

Rape In the First Degree (Class B Felony) – Five to 25 years in prison and a fine of up to $5,000

A person is guilty of rape in the first degree when he or she engages

in sexual intercourse with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

Rape In the Third Degree (Class E Felony) – Up to four years in prison and a $5,000 fine

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some factor other than incapacity to consent.

*****DROPPED CHARGE*****

Criminal Sexual Act in the First Degree (Class B Felony) – Up to 25 years in prison

A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless;or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

‘No coverage is available under the Aetna Policies for any ‘bodily injury’ or ‘personal injury’ unless it was fortuitous. The Underlying Claims allege that all of the damages sought are the non-fortuitous results of intentional and non-fortuitous acts by Weinstein.’

‘The Aetna Policies provide coverage for ‘bodily injury’ caused by an ‘occurrence’, defined as ‘an accident.’ The alleged sexual assaults and harassment perpetrated by Weinstein were not accidents and, therefore, cannot constitute ‘occurrences’ as defined in the Aetna Policies.’

‘There is no coverage under the Aetna Policies for any ‘bodily injury’ that was ‘expected or intended’ from the standpoint of the Insured. The Underlying Claims allege that all of the damages sought are the intended results of intentional acts by Weinstein.’

‘No coverage is available under the Aetna Policies for any “bodily injury” that took place outside their respective policy periods. Many of the Underlying Claims are based on alleged ‘bodily injury’ that took place prior to the inception of or after the expiration of the policy periods of one or more of the Aetna Policies. The Aetna Primary Policies include an Abuse or Molestation Exclusion Endorsement, which excludes ‘bodily injury’ and ‘personal injury’ arising out of ‘(a) the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured.’ There is no coverage under the Aetna Primary Policies for any ‘bodily injury’ arising out of the actual or threatened abuse or molestation by Weinstein of any person while in the care, custody or control of any insured.’

Weinstein was set to begin his trial in the criminal case against him that is being head by Manhattan district attorney Cyrus Vance, but that was pushed back to November, as was the case being brought against him by Attorney General Barbara Underwood.

Weinstein filed a motion to dismiss the criminal charges against him back in August that contains a number of emails sent by one of his accusers between 2013 and 2017.

That woman, whose alleged rape by Weinstein in 2013 resulted in charges of rape in the first degree, rape in the third degree and predatory sexual assault, wrote in the emails that Weinstein ‘is the bar’ for the movie industry and comments on his ‘smile and beautiful eyes.

In one email, sent in 2014, the woman wrote: ‘There is no one else I would enjoy catching up with that understands me quite like you.’

Two weeks later, the woman wrote to accept Weinstein’s invitation to bring her mother along for a drink, saying: ‘She would love to meet you, plus you can see how good my genes are.’

Brafman argues that emails like that and the others he submitted along with the motion, should have been seen by members of the grand jury.

The final email, from 2017, is less effusive than the others submitted by Weinstein, reading: ‘I love you, always do. But hate feeling like a booty call.’

That came in response to an email from Weisntein in which he tried to schedule a meeting with the woman before heading off to a redacted city.

He wrote that he could meet in the afternoon, and when the woman responded to ask the address Weinstein replied with the name of a hotel, even though he was in New York at the time.